In my last post I discussed the employee's duty to mitigate in highly unusual case.
The duty to mitigate is an important issue in most wrongful dismissal cases. The issue was recently discussed by the Supreme Court of British Columbia in Koenig v. Brandt Tractor Ltd.,2013 BCSC 920.
In this case, the employee was employed by the defendant as its Parts Manager at its Vernon branch. This is a position he held since 2004. He had been employed since 1987. The employee was given notice of termination on January 9, 2009. He was given 9 ½ months of working notice. Mr. Koenig found secured comparable alternate employment on April 26, 2010.
The plaintiff claimed that his employer failed to provide him with reasonable notice of termination.
The employer took the position that the plaintiff failed to mitigate when he refused to consider a possible offer of employment. According to the Court:
Mr. Jones thought that Mr. Koenig would be “ideal”. He contacted Mr. Koenig in June or July 2009 to ask if he was interested in the position of Parts Manager at Freightliner. He believes that he described the compensation and benefits to Mr. Koenig. He told Mr. Koenig that Freightliner was very interested in hiring him.
Mr. Koenig expressed no interest. Mr. Jones deposed that if the plaintiff had shown interest, he would have offered him the job. He had authority to do so. No interview process or reference checks would be necessary because Mr. Jones knew Mr. Koenig.
It would seem that the plaintiff declined to pursue the opportunity because of concerns he had with certain practices that he suggests he reported. However, the individual to whom he allegedly reported the concerns explained that when he asked for information and particulars about the concerns he did not provide any.
The Court summarized the law relating to the duty to mitigate:
The onus is on the defendant to establish a failure to mitigate: Red Deer College v. Michaels (1975), 57 D.L.R. (3d) 386. The nature of the duty was described in Smith v. Aker Kvaerner Canada Inc. and Kvaerner Power Inc., 2005 BCSC 117 at para. 31:
In seeking and accepting alternative employment, the plaintiff has a duty to act reasonably and to take such steps as a reasonable person in the plaintiff’s position would take in his own interest to maintain his income and his position in his industry, trade or profession. The duty involves a constant and assiduous application for alternative employment, an exploration of what is available through all means ....
While the law does not "require" (to use the words of the court) the plaintiff to pursue any particular employment, there may be implications on a damages claim where the terminated employee fails to do so. In this case, the plaintiff raised "reservations" in pursuing the employment opportunity in question. This was found to be unreasonable in the circumstances and resulted in an adverse finding to the employee.
According to the Court "if he had taken the job, as he reasonably should have, then he would have suffered no loss of income".
The claim was dismissed.
While the defendant bears the onus of establishing that the plaintiff failed to mitigate, and while it is a heavy onus, it is not one that is insurmountable. Employers should compile a variety of evidence of comparable employment opportunities to assist in demonstrating that the employee failed to mitigate. The Koenig case is an excellent example of how a dilligent and thorough investigation can meet the onus.
